UK Publishers: Fair Use Would Put A 'Chokehold On Innovation'

from the say-what-now? dept

We've mentioned a few times that the UK is running a big review of copyright laws in the country, with a focus on questions having to do with fair use and other exceptions to copyright law, and how they impact innovation. While we're still a bit skeptical -- in part because the last such review (the infamous Gowers Report) was almost entirely ignored when it argued against extending copyright law (and even hinted that reducing it would be better) -- we were encouraged to find out that some of the most knowledgeable people around on copyright law were included on the team. James Boyle, in particular, has been quite vocal about the need for actual empirical evidence, rather than just buying the claims of "harm" from industry types.

The review panel recently closed their request for comments, and some folks are publishing their own comments. A really fantastic one is from Glyn Moody, who highlighted actual data and research, and pointed out where the industry's claims were flawed. It's a very powerful analysis, and I hope that the people on the review committee will take it seriously.

At the other end of the spectrum, however, is a trade group representing publishers in the UK, The Publishers Association Limited. While (as of this writing) I cannot find anything on the organization's own website concerning their filing, they did send out an email to various folks, and Shane Richmond kindly forwarded it on to me. It's stunning in its backwards thinking -- and for its complete lack of factual evidence to back up its claims. The Publisher's Association merely listed out a bunch of bullet points, and we'll take a look at a few:

radical changes to IP laws would fly in the face of expert opinion -- senior executives across the whole sector emphasise the importance of the current IP framework in driving innovation and delivering growth.

Except almost none of that is accurate. Tons of experts have gone into great detail on the problems of copyright law today. But, of course, the Publishers ignore all of this. They only asked senior execs who receive the bounty of having a strong government monopoly if that monopoly was important. It's like asking a kid if candy is good for them, and then using that answer as the evidence that candy is good for children.

introducing elements of an American style fair use exception would create legal ambiguity and put a chokehold on innovation. There is no evidence that it would have a positive effect on overall levels of innovation and growth.

And this is the guffaw-inducing claim. The US has a long history of case law around fair use, and while there are ambiguities, the idea that it would put a chokehold on innovation to allow people to do more with copyrighted works is simply laughable. The Publishers support this with absolutely no evidence. And, of course, the biggest evidence comes from us right here in the US, where we did implement just such a fair use regime, and it did not lead to any chokehold on innovation.

in ten years of surveying British companies on barriers to innovation, the UK Government has not found evidence that companies believe the IP regime to be a barrier to their growth.

I don't quite know the details of this particular study, but the issue that David Cameron raised when he initiated this review of copyright law remain pretty key: all of the big US tech and media companies rely heavily on fair use. If UK companies don't think they need fair use, they may not realize just what they're missing.

barriers to growth and innovation are not the fault of copyright law, but are caused by copyright infringement, the wider business environment and inefficiencies in the licensing system.

[citation needed] All of the (non-industry) evidence suggests otherwise. That's what Glynn's submission highlighted in many points. So why would the Publishers make a claim that is so easily refuted by the evidence?

proposals to tackle these problems are in train and Government has a critical role to play in speeding up implementation of the Digital Economy Act and in supporting industry efforts to reduce the incidence of copyright infringing weblinks being prominently displayed in search engine results.

Yes, this is the Publishers' big solution for innovation: making linking illegal and kicking people off the internet. So very forward thinking of them. Of course, it's no surprise that a big trade group representing a bunch of legacy players who hate change would argue against change based on nothing more than fear and an unwillingness to adapt. However, one hopes that the review committee will put such comments into their proper context.

Re:

And it's already been returned.

"Thank you for your input. However, if we were interested in your opinion, we would have asked for it, ignored it and passed legislation against it. The public has no business expressing an interest in the laws that may affect them."

2nd reading...

radical changes to IP laws would fly in the face of expert opinion -- senior executives across the whole sector emphasis the importance of the current IP framework in driving innovation and delivering growth.

Appeal to authority.

introducing elements of an American style fair use exception would create legal ambiguity and put a chokehold on innovation. There is no evidence that it would have a positive effect on overall levels of innovation and growth.

We don't know what will happen to us.

in ten years of surveying British companies on barriers to innovation, the UK Government has not found evidence that companies believe the IP regime to be a barrier to their growth.

Because we don't know what it might do to us, it must not be good for us.

barriers to growth and innovation are not the fault of copyright law, but are caused by copyright infringement, the wider business environment and inefficiencies in the licensing system.

Monopolies, however temporary (99+ is no more than a coon's age :), don't decrease competition. Just don't look up the definition of temporary.

proposals to tackle these problems are in train and Government has a critical role to play in speeding up implementation of the Digital Economy Act and in supporting industry efforts to reduce the incidence of copyright infringing weblinks being prominently displayed in search engine results.

Licensing issues are inefficient not our 40 yr old business model predicated on print and broadcast :)

Furthermore, the [tax-paying, filesharing, freetard-funded] governments of the world must act as our personal army in order to make these people pay us. We make the woorld spin and the sun revolve around us.

Re:

Re: Status Quo != Innovation

No doubt. They use "growth" and "innovation" over and over. There is such a parallel between big media and VCs. VCs have more intelligent partners, however. Who would you rather negotiate with, artists or engineers (I realize that's not black and white, but...)?

Re: OK that does it...

Interestingly, no one had heard of the Publishing Association until about 9 months ago when the BPI's top lobbyists moved over to them (I guess due to musicians gradually realising that paying someone to lobby against their own interests was a bad idea).

Having said that, I'm against fair use (and argued so in my response to the review, on behalf of PPUk). It *is* uncertain (particularly with an absence of domestic case law) and it seems that every other week there tends to be a story here about some company suing for copyright infringement despite it being an obvious case for fair use.

Fair use is a kind of equitable defence; as such it works great when you have equal parties, but is almost worthless when dealing with a stronger or weaker party. A much more sensible approach would be (in my opinion) to set very clear and limiting rules on when copyright applies, rather than saying it always exists unless one of a set of fairly vague defences applies.